Monday, December 28, 2009

The Dreaded 709 Ride: Aircraft Accident, Incident, or Just Another Disney Attraction

by Dennis Haber, Aviation & Business Attorney

I went to Disney World recently, closely followed by a trip to Universal Studios. I do it because … well, because I never grew up. I guess that’s why I love aviation. Every flight is a different ride. The stalls, the spins, the parachute drop, they are all amusement rides to me. Then there is that “other” ride – the terrifying 709 ride. But this ride is not at Disney, or Universal. It’s at your local airport, and only your local FSDO gives out the tickets.

There are those times when you run a stop sign, or rear end the car in front of you because you were busy playing with your new iPhone™ or GPS device. Of course you didn’t mean to, but there he/she was, and you ended up with a ticket.

That can also happen in airplanes. Well, maybe there is no cop to pull you over, but they are out there. They know your every move. So, what happens if you are involved in such an “incident” (whatever that is) in which your aircraft is damaged, but no one is injured? Or perhaps you cut the corner of a Class B or fly to close to the President’s house. What then?

Alternatively, perhaps you landed on a grass field breaking off your wheel pants or flew under a bridge thinking that nobody would notice. If the FAA finds out, you will quite possibly get a nasty-gram demanding that you appear for the terrifying and dreaded 709 ride, and trust me, this is no Mickey Mouse examiner.

Not the Latest Ride at Disney World or Universal Studios

The 709 ride relates to the FAA's authority to re-examine an airman holding a certificate (pilot, flight instructor, airframe and power plant, etc.) at any time pursuant to 49 U.S.C. 44709(a). They may have good reason, or no reason at all, because they don’t really have to go into any detail in telling you what you did wrong.

The FAA issues a “request for re-examination” to an airman after they discover evidence (the source of which they do not have to disclose) that leads them to question his/her qualifications to exercise the privileges of the airman's certificate. Incidents such as the examples illustrated above involve circumstances that very well may lead the FAA to question an airman's qualifications. Conversely, since this isn’t a court hearing, the details of the complaint are not substantively disclosed. This is an “administrative proceeding” and the “rules of evidence” never come into play. The only rule is the rule of the government, which states, “We are the government, and we are here to help you.”

What if the accident or incident wasn’t your fault? What if the accident or incident was caused by a mechanical failure, or the Class B just popped up, or the guy or gal elected President isn’t the one you expected, so no TFR was anticipated? What then? Unfortunately, unless the mechanical failure is obvious to the FAA as the sole cause of the incident, a request for re-examination is likely to be considered reasonable. Why, you ask? Because the FAA only has to show that a lack of competence “could have been a factor” and, if it was, the re-examination request is considered reasonable, without regard to the likelihood that a lack of competence had actually played a role in the event.

According to FAA Order 8700.1, Volume 2, Chapter 26, “.there must be ample or probable cause for requesting the re-examination” including reliable reports, personal knowledge, or evidence obtained through an accident, incident, or enforcement investigation. Thus, the “lack of competence” has to be supported by the facts and circumstances in the case. However, as long as a basis for questioning an airman's competence has been implicated, rather than actually demonstrated, the request is considered reasonable. The irony here is that while there appears to be adequate “due process” protections here prior to them calling you in, they don’t have to provide it to you. They just have to come to the conclusion internally and that constitutes “probable cause.” Once the FAA’s version of probable cause is established, your goose is cooked; don’t argue, just take the test and get it over with.

The Re-examination Request

The procedures for the 709 ride are set out in Order 8700.1. The Flight Standards District Office (FSDO) responsible for the area within which the accident or incident occurred will send the airman a letter requesting re-examination via certified mail, return receipt requested. The letter will include (1) the reasons for the re-examination (like you were caught busting a TFR that nobody knew about and just appeared because some politician was hob-knobbing around trying to be President); (2) the specific certificate and/or rating for which the re-examination is necessary (the government code for whatever license you might hold); (3) the type of re-examination (such as; we want to see if you can fly a holding pattern within 50 miles of the designated fix); (4) the category and class of aircraft required (if applicable); (5) the location of the re-examination (again, government code for which airport they want you to be at); and (6) a time limit for accomplishing the re-examination (you’ve got till high noon, and if you don’t show up, you can kiss your pilots license goodbye).

After the airman receives the letter, he/she usually has 15 days within which to complete the re-examination, although this is not always the case. If an airman was injured in an accident and their physical condition precludes completion of the re-examination, or if the airman needs more than 15 days within which to practice/prepare for the ride, the re-examination may be postponed. This is really big of the government. They will give you an extra 15 days time if you have lost an arm, a leg, or an eye; 30 days extra if you lost both eyes.

Under these circumstances, the FAA will require that the airman surrender his or her airman certificate and the FAA will issue a 30-day temporary certificate for the airman to operate under, until the re-examination.

If the FAA believes the airman will be operating commercially while carrying passengers, the FAA may demand that the re-examination occur within less than 15 days. In this situation, if the airman is unable, or refuses to submit to the re-examination within the specified timeframe, he/she may surrender their certificate and obtain dual instruction from a certificated flight instructor in preparation for the ride. If the airman finds it necessary to conduct solo practice, the FAA may issue a temporary airman certificate, valid for 30 days instead of 120 days bearing all ratings previously held by the airman. However, in the latter situation, the ratings for which the airman is to be re-examined will have the limitation, “For Student Pilot Purposes Only-Passenger Carrying Prohibited.”

The problem is that the letter doesn’t completely set out exactly what they will expect. Rather, you are provided only general guidance of a broad nature. The result is that you may find yourself preparing for all sorts of possibilities.

And just to make your life a bit more complicated, an airman who wants to surrender his or her certificate can not simply show up at the FSDO and hand it over. If the certificate is to be surrendered, it must be accompanied by a confirming that the certificate is only being surrendered on a temporary basis and that the airman reserves all privileges, rights and remedies with respect to the certificate and any potential adverse action the FAA may decide to take. An aviation attorney can help to draft this letter and/or assist with the logistics of the surrender. Most attorneys will try to avoid cuffs and the embarrassment of your arrest, especially at your office.

The 709 ride does not necessarily have to be scheduled with the FSDO that issues the request. If the accident or incident occurred somewhere other than the airman's home area, such as flying low over Disney World to get a closer look at Minnie topless sunbathing on top of the Castle, the airman can request that the re-examination be administered by the airman's home FSDO. In this situation, the airman's home FSDO would contact the FSDO issuing the letter requesting the re-examination and coordinate the tasks to be re-examined, and if any further enforcement action is necessary after the actual ride.

If the airman fails or refuses to submit to a re-examination within a reasonable period of time, the FAA will initiate emergency enforcement action, including, but not limited to, suspending the airman's certificate, and flattening their tires. Although the airman has the ability to respond to or appeal the emergency suspension, if the FAA has a reasonable basis (remember, “reasonable basis” is whatever the FSDO says it is) for the request and the airman has no other defenses, they will likely end up with a suspension of their certificate, pending submission to and successful completion of the re-examination.

What happens during the 709 ride? Is it worse then the Tower of Terror?

The re-examination is similar to a checkride, except that the airman is not typically subject to examination on all of the required tasks in the practical test standards (PTS) for the certificate upon which they are being re-examined (but you had better be prepared). Rather, the re-examination involves the tasks that were called into question by the occurrence of the accident or incident and is conducted in accordance with the PTS for the certificate or rating involved. The tasks may include components of the knowledge test, the skill or flight test, or both.

The inspector can fail the airman for any maneuver, procedure or knowledge deficiency in which the airman is found to be unqualified. (You had better know your light signals.) This includes any of the specific tasks upon which the airman is being re-examined. Additionally, if the inspector observes any deficient areas other than those that are the subject of the re-examination at any time during the re-examination, those deficiencies could also be the basis for failure of the test.

If the airman successfully completes the re-examination, one of three things will happen: (1) if the airman's certificate was suspended pending completion of the re-examination, the inspector will issue a letter of results and may issue a temporary certificate that bears all ratings and limitations from the original certificate; (2) if the airman's certificate was not suspended pending completion of the re-examination, the inspector will simply issue a letter of results and the airman may then continue to exercise the privileges of his or her certificate and/or ratings; or (3) if you exceed the examiners expectations, you will go on to the bonus round.

If the airman fails to successfully complete the re-examination, the inspector will inform the airman in detail of each deficiency. Additionally, if the airman's original certificate was surrendered in exchange for a temporary certificate and the term of the temporary certificate has time left on it, the inspector will decide whether to suspend the certificate or to extend the temporary certificate for an additional 30 days. In the latter instance, if the inspector believes the airman could successfully complete another re-examination if he or she obtained additional instruction, another 30-day temporary certificate will be issued with a limitation against carrying passengers. The airman will then have to submit to an additional re-examination within that 30-day period. In the first instance, when the inspector determines the airman is not qualified to hold the certificate or rating, the airman can expect to be the subject of enforcement action seeking revocation of his or her certificate and/or ratings.

In the End

If you are involved in an accident or incident in which pilot error is a possible cause and the FAA finds out, don't be surprised if you receive a certified letter requesting that you submit to re-examination. Also, remember that filing a NASA report won’t normally get you out of the problem. Many things that you might think should be excused, are looked at by the FAA as just poor planning We really can’t confuse “lack of judgment” with “lack of knowing better”. Playing dumb, or not doing your research, doesn’t cut it here. Flying over the Presidents ranch and claiming that it just looked like another farm house, won’t get you out of having a gun pointed at you when you land. Really . . . the FBI takes that kind of thing very seriously. “Sorry, I was looking at that cute heifer” isn’t a good excuse.

The first thing you need to do is review the scope of the re-examination request and objectively determine whether the FAA has a reasonable basis for making the request. Often, it will, and they are not obligated to provide you with any details so that you can question or review their probable cause findings.

Next, you need to decide how you want to respond. Although the request for re-examination can be intimidating and frustrating, especially if it follows an accident or incident in which your aircraft and/or your pride has been damaged, it is possible to treat it as a positive experience and use it as an opportunity to improve your skills as an aviator. This is especially true if you take the ride with an inspector who approaches the situation from a similar perspective.

If you find yourself facing a 709 ride with an inspector who does not approach the ride from this perspective, or if you have questions regarding the basis for the request or the procedures that should be followed, an aviation attorney can certainly assist you in the process. After all, you worked hard to obtain your certificate(s) and/or rating(s).

Many thanks to the FAA and other sources from which the information for this article was gleaned, including the Federal Regulations and my own bizarre perspective on life.

About the Author: Dennis R. Haber is a 7 year COPA member and an attorney practicing Aviation law, business, commercial litigation, as well as real estate law in New York, Washington DC and Florida. He has been flying for over 42+ years and has never pulled the chute in order to effectuate a successful landing . . .yet

Dennis Haber
Aviation & Business Attorney

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